Search This Blog

Wednesday, January 25, 2012

Hamdan's Back and the U.S. Common Law of War

The Hamdan case is back and yet again it offers an opportunity to explore a crucial aspect of the law of war.

Salim Hamdan was one of the first individuals charged before the U.S. Military Commissions. His challenge to the commissions’ jurisdiction went all the way to the U.S. Supreme Court, which concluded that the commission did not have jurisdiction over his case because, inter alia, the commission violated Common Article 3 of the Geneva Conventions. A four-justice plurality concluded that the inchoate offense of conspiracy was not a violation of the international laws of war that the Bush Administration was entitled to prosecute before a military commission.

After Congress passed the MCA of 2006 in response to the Hamdan decision, Hamdan was tried before a military commission for conspiracy and providing material support to terrorism. Ironically, the military jury acquitted him of conspiracy and only found him guilty of material support. He was sentenced to 5.5 years, transferred to Yemen, and subsequently released due to time served.

Although his sentence has long since been completed, his appeal of his conviction for material support is ongoing. The D.C. Circuit is now hearing the case, which is of immense importance between material support for terrorism is a key charge in both civilian and military commission cases against alleged terrorists.

The U.S. government has filed its brief in the case, and the document contains an interesting choice of language. (Analysis by Steve Vladeck here). In the past, the U.S. government has argued that material support for terrorism is a violation of the international law of war, and therefore punishable by military commission. However, the latest document exclusively uses an alternate formulation: material support for terrorism violates the U.S. common law of war, which the brief defines rather cryptically as "U.S. common law traditionally applied in wartime." The question is what that phrase really means and why it was used in this case.

The phrase “common law of war” is rather uncontroversial, and harks back to Ex Parte Quirin. Here’s how the Supreme Court defined it there:

The law of war, like civil law, has a great lex non scripta, its own common law. This “common law of war” (Ex parte Vallandigham, 1 Wall. 243, 249) is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war. Winthrop, Military Law and Precedents (1920), 17, 41, 42, 773 ff.

However, Quirin never uses the phrase U.S. common law of war, and this new term of art appears to be made up. I know of no previous U.S. federal or state case that uses this exact term. If it appears anywhere else, I would appreciate knowing its provenance.

The shift from “international” to “U.S.” common law of war, if we are to put a coherent gloss on it, must mean something like this: what U.S. courts have interpreted the international law of war to be, in particular in the form of past practice before previous military commissions. In that sense, although U.S. common law of war does not represent international law per se, it does represent a kind of precedent that might have stare decisis value. Or more aptly, the U.S. common law of war, in the form of past practice, represents a gloss on international law that Congress was certainly entitled to rely on when it passed the Military Commissions Act, pursuant to its "Define and Punish Clause" power, and codified material support as a crime.

In other words, Congress’ decision, if consistent with the U.S. common law of war, was presumably reasonable and therefore should not be disturbed by the judiciary, absent unambiguous evidence that Congress clearly erred when it exercised its "Define and Punish" function. But what if the past practice was wrong? Or what if past practice was based on previous international law which has, in the interim, significantly evolved or changed? Can we continue to prosecute before a military commission a violation of the law of war that the international law of war no longer recognizes as a crime? This seems like an odd -- or at least uncomfortable -- result.

That’s my best guess on the significance of the phraseology. If anyone has a better idea, I would love to hear it. Either way, I would not be surprised if the Hamdan case goes back to the Supreme Court again.

47 comments:

Anonymous
said...

BattleJAG: As an enduring student (and occasional teacher) of International Law (I-Law), I always make the distinction between I-Law and domestic U.S. law.

If the concept of Customary International Law (CIL) has a place in I-Law, why cannot the similar concept of the “Common Law of War” (LOW) have a place in domestic U.S. law, as the U.S. common law of the law of war (similar to the ICRC’s concatenation of CIL and International Humanitarian Law (IHL) into CIHL)?

For example, the U.S. chooses to comply with Art. 75 of Additional Protocol I (AP I) “out of a sense of legal obligation.” (See, e.g., http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy.) That is some evidence that these fundamental guarantees represent CIL (albeit only one State’s opinion juris and hopefully consistent State practice). Even if the international community disagrees with the U.S. position, and Art. 75 of AP I is not generally viewed as representing CIL internationally, it could still represent part of the U.S. Common LOW for domestic purposes. If you want to call the U.S. Common LOW a gloss on I-Law, so be it. Nevertheless, it could still have precedential value in the U.S. domestic judiciary, a Common Law system accustomed to dealing with such precedents. Why are you uncomfortable that a State’s domestic legal system deviates from I-Law? Isn’t this part of sovereignty?

We now have attempted to spellout 12 basic felony rules concepts which in turn will give you a much better knowledge of a lot of the suggestions anyone will have to master when thinking about a job within felony rules. crosswrods solutions

Augmented future has deferred the timing of beginning families, the time of retirement, and another study by economists at the University of East Anglia proposes that individual religious responsibility is additionally being put onto a back burner for thought at a future time. How perilous to the about Christian is this method of wagering on long life?For more info see essay writing services this website . I like it very much.

This is so nice for the retired. They could work in lots of fields. There are many things we should consider when doing a resume. Make sure your resume is employer oriented rather than prioritizing things you had done in the past.

Locksmith Edmonton deal in variant kinds of services which include residential, commercial and auto locksmith services. If you have got locked out of your car and you need emergency services, then you can avail our efficient services.

with so many tel aviv escort agencies to choose from, each promoting a gorgeous array of tel aviv escort girls, are there any benefits of choosing to use one particular escort agency on a regular basis?

Have a nice day. Thanks for your awesome blog post. I am appreciate to read your blog.Attention please-Without a proper legal assistance, you could end up losing the case and waste the opportunity to handle a certain situations. Get the advantage of online legal services by retaining a lawyer to manage your legal requirements. After all you only get what you pay for.Look about: community Legal Services

Legal matters are found in every country across the globe. I am really glad to find such a blog that takes us way far back when the law of war was being determined. Affordable content writing help offered by experts and professionals.

This is a wonderful product, taking into account all the information about it, this type of product that prevents user interest in the site, and you will share more ... good luck.fundraising companies india

You have a very inspiring way of exploring and sharing your thoughts. It is very uncommon nowadays, lots of sites and blogs having copy pasted or rewritten info. But here, no doubt, info is original and very well structured. Keep it up.marble in india

Life becomes more interesting and wonderful when you share your memorable moments with friends and family through unique photographs. You can create your own unique style impressed with image editing software. And after hours of work stress you can also

Life becomes more interesting and wonderful when you share your memorable moments with friends and family through unique photographs. You can create your own unique style impressed with image editing software. And after hours of work stress you can also

Recently at EJIL Talk

Recently at Opinio Juris

LieberCode on Twitter

Purchase from Amazon.com

What is the Lieber Code?

The Lieber Code was the first codification of the international laws of war. Commissioned by President Lincoln during the Civil War, the Lieber Code was formally known as General Order No. 100 and was published as a pamphlet that could be carried by Union soldiers during battle. The Code was written by Columbia University Professor Francis Lieber, who was heavily influenced by, among other sources, the philosophy of Immanuel Kant. Though published in 1863, the Lieber Code is still cited today by legal scholars, courts, and international tribunals.